What are the principles of the unjust factor in determining special costs?

British Columbia, Canada


The following excerpt is from Wilson v. INA Insurance Co. of Canada, 1998 CanLII 6749 (BC SC):

In Just v. British Columbia, [1992] B.C.J. No. 1370, Donald J. (as he then was) stated at p. 6: The principles relating to the unjust factor appear to be these: (1)where ordinary costs fail to meet one-half special costs an injustice presumptively arises because ordinary costs are designed to achieve that result; (2)the conduct of the parties may justify increased costs in a negative sense by the use of hard nosed and burdensome tactics or in a positive sense by the application of industry and cooperation that reduces the number and duration of pre-trial procedures and shortens the trial; and, (3)the unusual nature of the case or its difficulty or importance may be such that the structure of the tariff simply cannot produce fair indemnity and more than 50% of special costs must be awarded to do justice.

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